Contents

Academic freedom

Some faculty object that an OA policy would infringe their academic freedom.

If they object that it will limit their freedom to submit new work to the journals of their choice, then they are mistaking a green policy (as recommended here) for a gold policy. They are mistaking deposit in OA repositories for submission to OA journals. Help faculty understand the difference between requiring deposit in a certain kind of repository and requiring submission to a certain kind of journal, and help them understand that the policy is limited to the former and does not extend to the latter.

If they object that some journals will not allow OA on the university's terms, and that faculty will effectively be barred from publishing in those journals, then they are forgetting about the waiver option. Faculty may submit their work to such a journal. If their work is accepted, they may publish in that journal simply by obtaining a waiver, which the university will always grant, no questions asked. In fact, preserving faculty freedom to submit new work to the journals of their choice is the primary rationale for the waiver option. Be explicit in reassuring faculty that they remain free to publish anywhere and remain free to decide for or against OA for each of their publications.

If they object that the policy will diminish their rights or control over their work, then they don't understand the terms of standard publishing contracts, the rights-retention aspect of the OA policy recommended here, the feature of the policy allowing the university to transfer rights back to the author, or all three. Authors sign away most of their rights under standard publishing contracts. In fact, increasing author rights and control is the primary rationale of a rights-retention OA policy. Be explicit in reassuring faculty that they will have far more rights and control over their work under this policy than under a standard (or even progressive) publishing contract.

If they object that the policy will give the university ownership of their work, then they don't understand nonexclusive rights, the terms of standard publishing contracts, or both. The policy grants no exclusive rights to the institution, only nonexclusive rights. By contrast, faculty routinely grant exclusive rights to publishers through standard publishing agreements.

If they object that they will be subject to a new form of coercion, then they are overlooking the waiver option, misinterpreting the word "mandate", or both. If some people call the policy a "mandate", it's only because the policy is stronger than a request or encouragement. But it's not a mandate in any other sense, and doesn't call itself a mandate. The waiver option means that faculty retain the freedom to decide for or against OA for every one of their publications. Where the word "mandate" may be a problem, don't use the word, and where the word is already causing problems, help faculty focus on the actual substance of the policy rather than the implications of a very imperfect label for the policy. (More under "Mandate" below.)

These objections are especially common on campuses where faculty distrust of administrators runs high. Sometimes faculty do understand the green/gold distinction, the waiver option, rights-retention, and nonexclusive rights. But when they distrust administrators, they often see a draft OA policy as an attempted power grab by the administration. When this is a risk, be especially clear on the points above (the green/gold distinction, the waiver option, rights-retention, and nonexclusive rights). But also be clear on the fact that the policy is a faculty initiative. It is drafted by faculty and will be voted upon by faculty. Be clear that it enhances author prerogatives (control over their work and distribution channels for their work), while preserving their freedom to decide for or against OA and preserving their freedom to submit their work to the journals of their choice. These are the reasons why so many OA policies have been approved by unanimous faculty votes.

At schools where faculty worry that administrators might claim control over faculty publications under the work-for-hire doctrine, it helps to point out that the kind of policy recommended here reaffirms that these rights belong to faculty. Through the vote on the policy, faculty grant (nonexclusive) rights to the institution. This act presupposes that it is the faculty's prerogative to grant or withhold these rights.

"Compliance"

Policies of the type recommended here have two main components: permissions and deposits.

On the first component (permissions, licenses, rights-retention), compliance reaches 100% as soon as the policy is adopted.

On the second component (deposits in the repository), compliance always requires time, and typically requires education, assistance, and incentives. But even though the deposit rate generally starts low and grows slowly, and occupies most of the attention of those charged with implementing a policy, it doesn't follow that the deposit rate is the only component of the compliance rate.

You could say that waivers are a third component of the policy. But it's probably better to bring in waivers as potential modifiers of the first two components. In the kind of policy recommended here, the permissions component is waivable and the deposit component is not waivable. In any case, campus leaders should make clear that faculty who obtain waivers are still complying with the policy. They are not violating the letter or spirit of the policy. The policy deliberately accommodates those who need or want waivers.

"Institutional repository"

University OA policies generally require deposit in the institutional repository, and we recommend that practice. In this sense, an institutional repository tries to gather the research output of an institution. By contrast, a central, subject, or disciplinary repository tries to gather the research output of a field. When we're discussing different kinds of repository, the term "institutional repository" is unambiguous and unfrightening. It also tends to emphasize the fact that the repository is hosted by a non-profit institution and therefore not subject to corporate capture or enclosure.

However, many faculty do not realize that institutional repositories are indexed by major (academic and non-academic) search engines, and are interoperable with other repositories. Many faculty think that an institutional repository is a walled garden or a silo of content only visible to people who know that the repository exists and who make a special visit and run a special search. In addition, most faculty identify more with their field than their institution. Hence, when discussing a university OA policy, the term "institutional repository" may reinforce false assumptions that deposited works are institution-bound, invisible, and provincially identified with an institution more than with the author, topic, or field. In discussing university OA policies, then, it may be better to emphasize the sense which institutional repositories are OA, open for indexing by any search engine, and interoperable with other repositories. They do not wall off content into institutional silos but openly distribute content using institutional resources. They are designed to expose content to searchers, and many more readers will find the repository articles through global, cross-repository searches than through local searches or local browsing. For all these reasons, many faculty will find "open-access repository" and "repository" more illuminating, more welcoming, and less confusing than "institutional repository".

"Mandate"

Realize that to many faculty, the word "mandate" suggests commands or coercion incompatible with academic freedom. That's a good reason to avoid the term. The kind of policy recommended here is not implemented through commands or coercion. First, it is self-imposed by faculty vote. Second, it contains a waiver option and merely shifts the default. It would be a mistake to let the understandable desire to avoid the ugly implications of the word "mandate" lead faculty to defeat a policy that was not a mandate in the ugly sense. The kind of policy recommended here preserves faculty freedom to choose for or against OA for every one of their publications.

On the other hand, the policy recommended here is considerably stronger than a mere request or encouragement. The chief rationale for the word "mandate" is that English doesn't seem to give us better options for a policy that goes well beyond requests and encouragement and yet stops short of commands and coercion. (If you have a better alternative, please come forward!)

In any case, the deposit expectation or deposit commitment is only one part of the policy. Don't talk about the policy as if deposit in the repository were the only part or the main part. It's one of two equally important parts. The key second part is rights retention by the institution and author. As we explain in the entry on transferring rights back to the author, the kind of policy recommended here increases faculty freedom to use and reuse their own work.

"Opt-out" and "opt-in"

We recommend an "opt-out" policy (with the waiver as the opt-out). This kind of policy "shifts the default" from lack of permission for OA to permission for OA. After a rights-retention policy is adopted, faculty who don't lift a finger are granting the institution permission to make their future work OA. If they want a different outcome, they must lift a finger and change the default (by obtaining a waiver). Faculty who object to opt-out OA policies sometimes believe that the default will be difficult to shift, or that their request to shift it might be denied. But this depends on the policy. We recommend that the policy make clear that the institution "will" grant opt-outs or waivers, whenever a faculty member asks it to do so, not merely that it "may" grant waivers.

Some institutions adopt what they call "opt-in" policies. But in effect they already had opt-in policies. Faculty already had the right to opt in to green OA, or to retain rights (if they could swing it) and deposit their work in an OA repository. If the university didn't have an institutional repository, then faculty could deposit in a disciplinary repository. Hence the proper opposite of an "opt-out" policy is either a non-policy (which is weaker) or a no-waiver policy (which is stronger).

In an earlier section, we recommended against "opt-in" policies on the ground that they are equivalent to non-policies, and seem to change the status quo when they do not.

"Waivers"

The university should make works in the repository OA whenever it has legally sufficient permission to do so. The kind of rights-retention policy we recommend here is one source of permission. When a faculty member obtains a waiver for a given article, then the university does not have permission from the policy to make that article OA. But the university might have permission from another source, such as the publisher. A waiver of the license in the university policy doesn't waive the license the university may have from the publisher. Hence, when talking about waivers, don't say or imply that waivers flatly block OA permission for a given work. They only block OA permission from the policy, not from other sources. We recommend that policy proponents be explicit that the institution will make deposited work OA whenever it has permission to do so.

Some faculty will overlook or misinterpret the waiver option and object that the policy limits their options and infringes their academic freedom. (We respond to this objection in the entry on academic freedom above.)

Some faculty who are strong proponents of OA will raise the opposite objection, and argue that the waiver option guts the policy and should be deleted. They believe the waiver rate will be high for example, 40%, 60%, or 80% when the experience at every school with a waiver option is that the waiver rate is low. At Harvard, MIT, and the University of California, it's below 5%. Moreover, removing the waiver option will make it impossible to answer objections based on academic freedom. Because a policy with an unwaivable license might infringe academic freedom, it could also fail to muster the votes needed to pass. Don't make the perfect an enemy of the good, and don't underestimate the ways in which shifting the default can change behavior on a large scale.

If you accept our recommendation that waivers should apply only to the grant of rights to the institution (a.k.a "the license"), and not to deposit in the repository, then it's better to speak about "waiving the license" than "waiving the policy".